Handbook of international human rights law routledge

Routledge Handbook ofInternational Human Rights Law

The Routledge Handbook of International Human Rights Law provides a deﬁ nitive global surveyof the discipline of international human rights law. Each chapter is written by a leading expertand provides a contemporary overview of a signiﬁcant area within the ﬁeld.As well as covering topics integral to the theory and practice of international human rightslaw, the volume offers a broader perspective through examinations of the ways human rights lawinteracts with other legal regimes and international institutions, and by addressing the currentand future challenges facing human rights.This highly topical collection of specially commissioned papers is split into ﬁve parts:•••

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Part I: Introduction and overview.

Part II: The nature and evolution of international human rights law, discussing theorigins, theory and practice of the discipline.Part III: Interaction of human rights with other key regimes and bodies, including theinteraction of the discipline with international economic law, international humanitarianlaw and development, as well as other legal regimes.Part IV: Evolution and prospects of regional approaches to human rights, discussing thesystems of Europe, the Americas, Africa and South East Asia, and their relationship to theUnited Nations treaty bodies.Part V: Key contemporary issues and the challenges for the future, including non-stateactors, religion and human rights, counter-terrorism, and enforcement and remedies.

Providing up-to-date and authoritative articles covering key aspects of international humanrights law, this book is an essential work of reference for scholars, practitioners and students alike.Scott Sheeran is a Senior Lecturer, School of Law and Human Rights Centre, at theUniversity of Essex, and Director of the LLM in International Human Rights Law.Sir Nigel Rodley is Professor of Law and Chair of the Human Rights Centre at theUniversity of Essex. He is currently the chair of the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights.

known or hereafter invented, including photocopying and recording, or inany information storage or retrieval system, without permission in writingfrom the publishers.Trademark notice: Product or corporate names may be trademarks orregistered trademarks, and are used only for identiﬁcation and explanationwithout intent to infringe.British Library Cataloguing in Publication DataA catalogue record for this book is available from the British LibraryLibrary of Congress Cataloging-in-Publication DataRoutledge handbook of international human rights law / [edited by] Scott Sheeran, Nigel Rodley.p. cm.Includes bibliographical references and index.ISBN 978–0–415–62073–4 (hardback) — ISBN 978–0–203–48141–7 (ebk) 1. Human rights.I. Sheeran, Scott (Law teacher), editor of compilation. II. Rodley, Nigel S., editor of compilation.III. Title: Handbook of international human rights law.K3240.R699 2014341.4’8—dc232013026256ISBN: 978–0–415–62073–4 (hbk)ISBN: 978–0–203–48141–7 (ebk)Typeset in Bemboby ReﬁneCatch Limited, Bungay, Suffolk

Contents

ContributorsAcknowledgements

ixxvi

PART I

Introduction and overview1 The broad review of international human rights lawScott Sheeran and Sir Nigel Rodley

13

PART II

Nature and evolution of international human rights law2 The historical development of human rightsWiktor Osiatyn´ ski

79

3 Human rights in political and legal theoryGuglielmo Verdirame

25

4 Universalism of human rights and cultural relativismMichael Freeman

49

5 The evolving study of human rights: interdisciplinarity and new directionsMicheline Ishay

63

6 The relationship of international human rights law and generalinternational law: hermeneutic constraint, or pushing the boundaries?Scott Sheeran

79

7 International human rights law and a developing world perspectiveAntony Anghie

109

8 The contemporary challenges to international human rightsRadhika Coomaraswamy

127v

Contents

9 Human rights and foreign policy: syntheses of moralism and realismBruno Stagno Ugarte10 The use of international human rights law by civil society organisationsAndrew Clapham11 International human rights in ﬁeld operations: a fast developinghuman rights toolMichael O’Flaherty and Daria Davitti

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153

169

PART III

Interaction of human rights with other keyregimes and bodies12 The relationship between international humanitarian law andinternational human rights lawFrançoise J. Hampson13 International criminal law and tribunals and human rightsWilliam Schabas14 International refugee and human rights law: partners in ensuringinternational protection and asylumCornelis (Kees) Wouters

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185

215

231

15 Human rights and international tradeSheldon Leader

245

16 International ﬁnance and investment and human rightsPeter T. Muchlinski

263

17 International environmental law and human rightsKaren Hulme

285

18 Customary law and human rightsEvadné Grant

303

19 Reservations to treaties and the integrity of human rightsAlain Pellet

323

20 The International Labour Organization and internationalhuman rights systemLee Swepstonvi

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Contents

21 The International Court of Justice and human rightsAwn Shawkat Al-Khasawneh22 The UN Security Council and international human rights obligations:towards a theory of constraints and derogationScott Sheeran and Catherine Bevilacqua

353

371

PART IV

Evolution and prospects of regional approaches to human rights

405

23 The European system and approachPhilip Leach

407

24 The Inter-American System of Human Rights and approachClara Sandoval

427

25 The impact and inﬂuence of the African regional humanrights system on domestic lawFrans Viljoen

445

26 The South East Asian system for human rights protectionVitit Muntarbhorn

467

27 The League of Arab States and human rightsMervat Rishmawi

483

28 The relationship of the UN treaty bodies and regional systemsLorna McGregor

505

PART V

Key contemporary issues and challenges for the future

521

29 Non-state actors and human rightsSir Nigel Rodley

523

30 Implementation of economic, social and cultural rightsPaul Hunt, Judith Bueno de Mesquita, Joo-Young Lee and Sally-Anne Way

35 The extraterritorial application of international human rightslaw on civil and political rightsRalph Wilde36 Enforcement and remediesDinah Shelton37 Victims’ participation and reparations in international criminalproceedingsMegan Hirst

Sir Nigel Rodley KBE is a Professor of Law and Chair of the Human Rights Centre at theUniversity of Essex. From 1993–2001 he served as Special Rapporteur on Torture. Since 2001he has been a Member of the UN Human Rights Committee, and since 2013 the Chair of thatCommittee. He has published extensively on international human rights law and public international law, and is author with Matt Pollard of The Treatment of Prisoners under International Law(Oxford University Press, 2009).Scott Sheeran is Senior Lecturer in the School of Law and Human Rights Centre at the University of Essex, and Director of the LLM in International Human Rights Law and provideslegal support to the mandate of the UN Special Rapporteur for Iran. He worked previously asa New Zealand diplomat and legal adviser, including in New York and Geneva, and is on theadvisory council of several human rights NGOs. He has published on international human rightslaw, public international law and law of the United Nations.Wiktor Osiaty n´ ski is Professor of Law at the Central European University in Budapest. He alsoteaches human rights to the postgraduate students at the University of Siena, Italy. Since 1989,Osiatynski has been an advisor to constitutional committees in Poland and other countries, and isassociated with the Open Society Institute. He is the author of the comparative study of individual rights and constitutionalism Human Rights and Their Limits (Cambridge University Press, 2009).Guglielmo Verdirame is Professor of International Law at the Department of War Studies andSchool of Law at King’s College London. Before taking on this position, he was a Lecturer at theUniversity of Cambridge and Fellow of the Lauterpacht Centre for International Law. His mainareas of research and teaching are public international law, and legal and political philosophy. Heis a barrister at 20 Essex Street Chambers, London.Michael Freeman is a Research Professor in the Department of Government, University ofEssex, where he teaches political theory and human rights. He is the author of Human Rights: anInterdisciplinary Approach (Polity Press, 2011) and many other works on the theory and practice ofhuman rights. He is a former Chairperson of the British Section of Amnesty International. Heis currently working on world poverty as a human rights issue.Micheline Ishay is Professor and Director of the Human Rights Program at the Josef KorbelSchool of International Studies at the University of Denver, the largest interdisciplinary humanrights programme in the USA. She is the author or editor of numerous books and articles. HerHistory of Human Rights: from Ancient Times to the Era of Globalization (University of CaliforniaPress, 2004) has been translated into several languages.ix

Contributors

Antony Anghie is the Samuel D. Thurman Professor of Law at the S.J. Quinney School of Lawat the University of Utah. He has written on a range of issues including the history and theoryof international law, human rights, the use of force, international economic law and globalisation.He is the author of Imperialism, Sovereignty and the Making of International Law (CambridgeUniversity Press, 2005).Radhika Coomaraswamy was appointed as the Under-Secretary-General, Special Representative for Children and Armed Conﬂict from 2006–12. She was also the Special Rapporteur onViolence against Women from 1994–2003. She has served as a member of the Global Faculty ofthe New York University School of Law, and has published widely, including two books onconstitutional law and numerous articles on ethnic studies and the status of women.Bruno Stagno Ugarte is Executive Director at Security Council Report in New York. Herecently concluded a sixteen-year career in the Costa Rican Foreign Service, which includedserving as Ambassador and Permanent Representative to the United Nations (2002–06), asForeign Minister (2006–10) and as President of the Assembly of States Parties of the International Criminal Court (2005–08). He is a graduate of Georgetown University, Universitéde la Sorbonne and Princeton University.Andrew Clapham is Director of the Geneva Academy of International Humanitarian Law andHuman Rights. He is Professor of Public International Law at the Graduate Institute of International and Development Studies, which he joined in 1997. He has published numerous booksand articles including Human Rights Obligations of Non-State Actors (Oxford University Press,2006) and International Human Rights Lexicon with Susan Marks (Oxford University Press, 2005).Michael O’Flaherty is Chief Commissioner of the Northern Ireland Human Rights Commission. He is Professor and holds the Chair in Applied Human Rights at the University ofNottingham and is Co-Chair of its Human Rights Law Centre. He has been Vice-Chairpersonof the UN Human Rights Committee and served in a number of senior positions with the UN.He has published extensively including Human Rights Field Operations, Law, Theory and Practice(Ashgate, 2007).Daria Davitti is a Lecturer in Law at Keele University and a doctoral candidate at the Universityof Nottingham. She has worked with various NGOs on human rights as well as with OHCHR.From 2006–08 she was a human rights ofﬁcer for the UN Assistance Mission in Afghanistan. Shehas published on human rights ﬁeldwork, forced migration, investment and human rights, and therecently launched UN Framework and Guiding Principles on business and human rights.Françoise J. Hampson OBE is a Professor of Law at the Human Rights Centre of theUniversity of Essex. She was a member of the steering group and group of experts forthe Red Cross study on customary international humanitarian law, and a member of the UNSub-Commission on the Promotion and Protection of Human Rights from 1998 to 2007. Shehas been legal representative before the European Court of Human Rights. She has published inthe ﬁelds of law of armed conﬂicts and human rights law.William Schabas is Professor of International Law at Middlesex University in London. He is alsoprofessor and chairman of the Irish Centre for Human Rights at the National University of IrelandGalway. He is the author of more than twenty books and 300 journal articles, on such subjects asx

Contributors

the abolition of capital punishment, genocide and the international criminal tribunals, such as TheInternational Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010).Cornelis Wouters is the Senior Refugee Law Advisor within the Division of InternationalProtection of UNHCR in Geneva. He is responsible for doctrinal guidance in internationalrefugee law and judicial engagement work. He has worked at Leiden and Mahidol Universities,various human rights and refugee NGOs, and was a member of the Sub-Committee on Asylumand Refugee Law of the Permanent Committee of Experts on International Immigration,Refugee and Criminal Law.Sheldon Leader is a Professor of Law at the Human Rights Centre at the University of Essex.He is Director of the Essex Business and Human Rights Project (EBHR) and a member ofthe Advisory Group to the Human Rights Committee of the Law Society of England and Wales.He teaches at the University of Essex, University of Paris-Ouest and a number of US universities. His work with the EBHR involves advice and training on issues involving business andhuman rights in various parts of the world.Peter T. Muchlinski FRSA is Professor in International Commercial Law at the School ofOriental and African Studies (SOAS), University of London. He is the author of MultinationalEnterprises and the Law (Oxford University Press, 2007) and is co-editor of the Oxford Handbookof International Investment Law (Oxford University Press, 2008). He acts as an adviser to theUnited Nations Conference on Trade and Development (UNCTAD) on investment law issues.Karen Hulme is a Professor in the School of Law at the University of Essex. She has writtenon environmental security, environmental damage in wartime, climate change and warfare andteaches in environment and human rights. Her book entitled War Torn Environment: Interpretingthe Legal Threshold won the American Society of International Law’s Francis Lieber Prize for2004 for ‘outstanding scholarship in the ﬁeld of the law of armed conﬂict’.Evadné Grant is Associate Head of Department and Director of Postgraduate Programmes in theDepartment of Law, University of the West of England, Bristol. She has taught at the Universitiesof Cape Town and of the Witwatersrand, as well as City University London and Oxford BrookesUniversity. Her research covers a variety of issues in international human rights law, includinghuman dignity and social, economic and cultural rights, and human rights and the environment.Alain Pellet is a Professor of Public International Law at the University Paris Ouest, Nanterre/La Défense where he was Director of the Centre de Droit International (CEDIN) from1991 to 2001. He is a former Member and Chairperson of the UN International LawCommission (ILC), and Special Rapporteur for the ILC’s work on reservations to treaties. Hehas been counsel before international tribunals including the ICJ, and is author of numerousbooks and articles on public international law.Lee Swepston is Former Senior Advisor on Human Rights at the International LabourOrganization (ILO) and is now a teacher (including at University of Lund and RaoulWallenberg Institute) and consultant. He joined the ILO in 1973, after a year with the International Commission of Jurists. He has written numerous books and articles on human rightsand international labour law, child labour, freedom of association, discrimination, HIV/AIDS,migrant workers and indigenous/tribal peoples.xi

Contributors

Awn Shawkat Al-Khasawneh was a Judge of the International Court of Justice from 2000 to2011 and also held the position of Vice-President. He was appointed Prime Minister ofJordan in 2011 and decided to resign in 2012. He is a Jordanian international lawyer, statesmanand diplomat, and has written and lectured extensively on international law. He has servedon many inter-national bodies, including the UN International Law Commission and theSub-Commission on the Prevention of Discrimination and Protection of Minorities.Catherine Bevilacqua is Deputy Director of the Human Rights in Iran Unit, which providessupport to the mandate of the UN Special Rapporteur on Iran. She has worked for AmnestyInternational’s ofﬁce to the UN in Geneva and its Asia-Paciﬁc Programme, and with grassrootsorganizations in Europe, South Asia and Brazil. She holds degrees from Harvard University andthe University of Essex, where she researched the relationship between UN Security Councilpowers and international human rights law.Philip Leach is Professor of Human Rights, a solicitor, and Director of the European HumanRights Advocacy Centre (EHRAC), based at Middlesex University. He has extensive experience of representing applicants before the European Court of Human Rights, and is the authorof Taking a Case to the European Court of Human Rights (Oxford University Press, 3rd ed., 2011).He has researched and written widely on a variety of human rights issues especially in theEuropean and UK contexts.Clara Sandoval is a Senior Lecturer in the School of Law and Human Rights Centre at EssexUniversity and Director of the Essex Transitional Justice Network. She teaches and researches onthe Inter-American System of Human Rights, legal theory, business and human rights and transitional justice. Most of her recent scholarship has been focused on reparations for gross humanrights violations. Clara also engages in human rights litigation, training and capacity-buildingwith various organisations.Frans Viljoen is Professor and Director of the Centre for Human Rights, University of Pretoria.He is acknowledged as an internationally recognised researcher (National Research Foundation,SA) and has won the Exceptional Achiever award at the University of Pretoria. He is the editor ofthe African Human Rights Law Reports and African Human Rights Law Journal. He has numerous publications including International Human Rights Law in Africa (Oxford University Press, 2007).Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University in Bangkok. Heteaches international law, human rights, humanitarian law and a variety of other subjects. Hehas served in various capacities in the United Nations system, including as the SpecialRapporteur on the sale of children, child prostitution and child pornography from 1990 to 1994,and since 2005 has been the Special Rapporteur on the Situation of Human Rights in theDemocratic People’s Republic of Korea. In 2004 he was awarded the UNESCO Prize forHuman Rights Education. His recent publications include A Commentary on the United NationsConvention on the Rights of the Child: Article 34: Sexual Exploitation and Sexual Abuse of Children(Martinus Nijhof, 2007).Mervat Rishmawi is a Palestinian human rights activist and human rights consultant. She is aFellow of the Human Rights Centre, University of Essex, and the Human Rights Law Centre,University of Nottingham. She previously worked with Amnesty International for approximately twelve years, most of which as Legal Advisor to the Middle East and North Africaxii

Contributors

Region. She has been a consultant to UN agencies and OHCHR, as well as a number ofregional and international organisations.Lorna McGregor is a Reader in the School of Law and Director of the Human Rights Centre,University of Essex. She was the International Legal Adviser at REDRESS where she was involved extensively in international and national human rights litigation. Her expertise is publicinternational law with a focus on international human rights law, including core violations,systems of access to justice, international law in national courts and procedural rules underinternational law.Paul Hunt is a Professor in Law at the Human Rights Centre, University of Essex and AdjunctProfessor, University of Waikato. He was a member of the UN Committee on Economic, Socialand Cultural Rights (1999–2002) and the ﬁrst UN Special Rapporteur on the right to thehighest attainable standard of health (2002–08). He has published extensively in the ﬁeld ofeconomic, social and cultural rights, and has signiﬁcant experience in human rights NGOs in theUK and Gambia.Judith Bueno de Mesquita is a Lecturer in the School of Law and a Member of the HumanRights Centre at the University of Essex, UK. Her teaching, research and publications focus oneconomic, social and cultural rights, and sexual and reproductive health and human rights. From2009-2011 she worked as a consultant with the Department of Reproductive Health andResearch, World Health Organisation. From 2001-2008 she worked a Senior Research Ofﬁcerin the Human Rights Centre, University of Essex, in support of the mandate of the UN SpecialRapporteur on the right to the highest attainable standard of health.Joo-Young Lee is a Lecturer of Human Rights and associate of the Human Rights Centre atSeoul National University in South Korea. She is the author of A Human Rights Framework forIntellectual Property and Access to Medicines (Ashgate Publishing, 2014, forthcoming). She teachesand researches on international human rights law, human rights and development, and businessand human rights, with particular focus on economic, social and cultural rights.Sally-Anne Way is currently Human Rights Ofﬁcer at the UN OHCHR, and was previouslyCo-Director of the LLM in International Human Rights Law and Lecturer in the School of Lawat the University of Essex. Her interests focus on the history, theory and practice of economic,social and cultural rights and on rights-based approaches to development. From 2001–2007, sheworked at the Graduate Institute of International and Development Studies in Geneva, servingas Senior Adviser to the UN Special Rapporteur on the Right to Food. Her publications include‘The Fight for the Right to Food’ (Palgrave Macmillan, 2011).Malcolm Evans OBE is Professor of Public International Law at the University of Bristol,where he was Head of School (2003–05) and Dean of the Faculty of Social Sciences and Law(2005–09). He has researched and published extensively on the international protection ofhuman rights, with particular focus on freedom of religion and the prevention of torture, andalso the law of the sea. He has various other roles, including Chair of the UN Sub-Committeefor the Prevention of Torture.Martin Scheinin is Professor of Public International Law at the European University Institute,Florence, and served ten years (1998–2008) as Professor of Constitutional and International Lawxiii

Contributors

and Director of the Institute for Human Rights at Åbo Akademi University. He was a memberof the UN Human Rights Committee (1997–2004) and Special Rapporteur on human rightsand counter-terrorism (2005–11). Since 2010 he has been the President of the InternationalAssociation of Constitutional Law.Upendra Baxi, an Emeritus Professor of Law at the Universities of Warwick and Delhi, haspreviously served as the Vice-Chancellor of the Universities of South Gujarat and Delhi and asthe Honorary Director of the Indian Law Institute and President of the Indian Society of International Law. His recent works include The Future of Human Rights (Oxford University Press,2008) and Human Rights in a Posthuman World: Critical Essays (Oxford University Press, 2011).Andrew Byrnes is Professor of Law at the University of New South Wales and Chair of theAustralian Human Rights Centre. He teaches and publishes in international law, in particularhuman rights, and has published on the Convention on Elimination of Discrimination AgainstWomen (CEDAW) and the human rights of women. He has acted as a consultant on gender andother human rights issues to various organisations including OHCHR and the UN Division forthe Advancement of Women.Ralph Wilde is a member of the Faculty of Laws at University College London, and has taughtat Cambridge, LSE, Texas and Georgetown Universities. His research focuses on many areas ofinternational law including extraterritorial application of human rights. His book InternationalTerritorial Administration: How Trusteeship and the Civilizing Mission Never Went Away(Oxford University Press, 2008) was awarded a Certiﬁcate of Merit by the American Society ofInternational Law.Dinah Shelton is the Manatt/Ahn Professor of Law at the George Washington University LawSchool. She has written and published extensively on international law, human rights law, andinternational environmental law, including Remedies in International Human Rights Law (awardedthe 2000 Certiﬁcate of Merit, American Society of International Law). She was a member ofthe Inter-American Human Rights Commission and in 2010 she served as President of theCommission.Megan Hirst is Legal Ofﬁcer in the Victims’ Participation Unit at the Special Tribunal forLebanon. Previously she worked in the Victims Participation and Reparations Section at theInternational Criminal Court. She has also worked in Timor-Leste for the International Centerfor Transitional Justice (ICTJ) and the Commission for Truth, Reception and Reconciliation,and has worked in legal system monitoring in both Timor-Leste and Kosovo.Nadia Bernaz is Senior Lecturer in law and programme leader of the MA Human Rights andBusiness at Middlesex University in London, and adjunct lecturer of the Irish Centre for HumanRights (NUI Galway, Republic of Ireland). She is the co-editor of the Routledge Handbook ofInternational Criminal Law (2011) and has written and presented papers on a wide range of subjects in international law and human rights law.Ted Piccone is a Senior Fellow and Deputy Director for Foreign Policy at the BrookingsInstitution. He was Executive Director and Co-Founder of the Democracy Coalition Project(2001–08) and served in the Clinton Administration in various roles. He has written onUS–Latin American relations, democracy and human rights, and multilateral diplomacy, includingxiv

Contributors

Catalysts for Rights: The Unique Contribution of the UN’s Independent Experts on Human Rights(Brookings, 2010).Allehone M. Abebe is a former Ethiopian diplomat with an extensive background in the UNHuman Rights Council. He has served as a co-chair of the Technical Advisory Group of theGlobal Commission on HIV/AIDS and Law. His research examines the role of regional normative standards in the protection of the human rights of internally displaced persons in Africa. Henow works at UNHCR and is currently a doctoral candidate under the supervision of ProfessorWalter Kalin.Juan E. Méndez is a Visiting Professor of Law at the American University-Washington Collegeof Law and UN Special Rapporteur on torture since 2010. He has held numerous roles inuniversities and society, including President of the International Center for Transnational Justice,and Special Advisor on the Prevention of Genocide (2004–07). He was a member of theInter-American Commission on Human Rights of the OAS (2000–03) and served as itsPresident in 2002.Catherine Cone is Law Clerk to the Honorable Anna Blackburne-Rigsby, District of ColumbiaCourt of Appeals, and a JD graduate of the American University's Washington College of Law. Shewas formerly research assistant to Juan E. Méndez, UN Special Rapporteur on torture. Catherinehas worked at the Center for Family Representation, a legal and social assistance provider tofamilies in crisis. She also provided programmatic support to technical legal assistance programmesof the American Bar Association’s Rule of Law Initiative.

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Acknowledgements

We would like to thank the authors who have given their scarce time to this project. It has beena large volume to bring to fruition, and without their strong contributions it simply would nothave been possible. We thank the international human rights law students at the University ofEssex who assisted signiﬁcantly with the large task of preparing and editing this volume. Thisincluded Alex Moorehead, Alice Lixi, Ronnate Asirwatham, Christina Beninger, Francesca TroncoGarcía, Shannon Gough, Lucy Graham, Ota Hlinomaz, Adeyinka Ige, Douglas Kerr, CharlottePier, Leah Mansﬁeld, Marina Themistocleous, Isaline Wittorski, and Ashirbani Dutta. The teamat Routledge, including Mark Sapwell, were very patient and helpful along the way, as wasReﬁneCatch the copyeditors. Scott would also like to thank Haidi for her constant love and support, along with my mother, and Valentino and Leo. Nigel, as always, is deeply indebted for theunstinting contribution of Dr Lyn Rodley, his sternest critic and acutest editor.Scott SheeranSir Nigel Rodley

The genesis of this collaborative scholarly project was the recognition of a timely point topause and undertake a broad and thorough review of the architecture of international humanrights law. This is after a period that seems, at least with the beneﬁt of hindsight, to have beenone of almost constant, even meteoric development. While this volume examines the origins,nature and practice of international human rights law, the main thrust is an exploration oftransverse themes, and the evolution, interaction with other bodies of law, and future of thediscipline. The contributions draw on perspectives from different regions, by both emergingand established scholars and practitioners from diverse backgrounds and with varied expertise.As such, this volume provides one of the most comprehensive surveys of the discipline todate. The editing of contributions has conﬁ rmed many of our own intuitions, but has alsochallenged our thinking and provided new insights. It is from this privileged and overarchingposition, informed by the contents of this volume, that we venture a few key reﬂections onthe corpus of international human rights law as a whole.The human rights project, a great societal endeavour, has been a work in progress for twoto three centuries nourished by foundational precepts of philosophy, political theory, andecclesiastical thought of more than two millennia. A pivotal element of the project has beenthe establishment and signiﬁcant inﬂuence of the discipline of international human rightslaw, characterised by impressive growth over the last sixty years and increasing specialisation.From the 1948 Universal Declaration of Human Rights, and the concepts and trends thatpreceded and underpinned that instrument, the body of international human rights law isnow both vast and complex. The discipline’s inﬂuence has extended into broader public international law and became integral in national and international life in respect of a wide rangeof issues. International human rights law is dynamic and its evolution is not linear; there is nostatic end point. As societies continuously evolve, so too does the way in which human rightsare internalised and manifested, and the role they play in the social compact. In safeguardinghuman conscience and dignity, human rights concepts and law will continue to be a centralpillar of the evolution of the societies that we have created.Due to the impressive breadth and complexity of the body of international human rightslaw, a few important subjects could not be fully covered in this volume. Yet, despite itsbreadth, the human rights project is not without its potential gaps, whether substantive3

Scott Sheeran and Sir Nigel Rodley

(e.g. no explicit right of freedom from corruption), in conﬂ icting interpretation and viewson the scope of rights (e.g. the freedom of religion), or a simple lethargy of signiﬁcantdevelopment (e.g. right to political participation, cultural rights).International human rights law is now more encompassing than was expected or evenconceived in the Charter and Universal Declaration. Its growth has largely obviated forexample the distinction between nationals and non-nationals within the jurisdiction of thestate, thereby somewhat eclipsing other areas of law (e.g. diplomatic protection, internationalrefugee law). With the development of extraterritorial obligations, which are accepted bymost States, the scope and reach of human rights has enlarged into challenging areas suchas overseas military operations and economic sanctions. A signiﬁcant exception to thisgrowing reach of human rights obligations has been the accountability of internationalorganisations, such as the UN and international ﬁnancial institutions, for the impact oftheir direct actions and exercise of public power on the enjoyment of human rights.The international community has afﬁ rmed the approach, articulated in the 1993UN Vienna Declaration and Programme of Action, that ‘[a]ll human rights are universal,indivisible and interdependent and interrelated’. However, the attractive simplicity of such astatement masks many issues that are not yet fully explored or resolved. For example, in lightof the jus cogens status of such rights as the prohibition against torture, and the associatedconsequences under the law of responsibility, questions arise on aspects of hierarchy withininternational human rights law. In reality there is also a continuing challenge in respect of thejudicialisation and legal enforceability of economic, social and cultural rights, evidenced interalia by a fundamental lack of political will. The growing economic development and politicalstrength of the Global South, a long-time supporter of such rights, may provide inﬂuencesthat both promote and undermine those rights.While the topics in this volume are underpinned by the common pursuit of realisinghuman rights through international law, a challenge of fragmentation and consistency existswithin international human rights law (i.e not just vis-à-vis general international law, as identiﬁed in the work of the UN International Law Commission on fragmentation). For example,it is still contested whether the ‘respect, protect and fulﬁ l’ framework applies within international human rights law as a whole (cf. economic, social and cultural rights). The degree ofgrowing specialisation and professionalisation has bred highly expert communities on subtopics of human rights (e.g. business and human rights), and consequently, a knowledgedivide and sometimes scepticism on the part of some engaged with issues at the practical andday-to-day level. The fragmentation tension also has an institutional dimension, for example,presenting itself in the varied interpretations of human rights concepts and law across differentfora and bodies, both specialist and general, in multilateral, regional and national contexts.The changing nature of conﬂ ict globally – towards civil conﬂ icts, insurgency andterrorism, and away from inter-state war – has engaged human rights in areas traditionallyperceived as the reserve of other bodies of law, such as international humanitarian law.This has also contributed to fragmentation tensions, as the overlap and complex relationshipof human rights with other regimes of law has needed to be tackled. Nevertheless, the realchallenge to the apparent acquis of international human rights law that the ﬁ rst responsesto the atrocities of 11 September 2001 seemed to represent, have in the end been in largemeasure successfully resisted.Human rights have also had to coevolve with changes in social concepts and values. Thedevelopment and differentiation of sex and gender identity in the social sciences and everydaylife has challenged international human rights law. There have been normative and institutional advances to meet the changes, which have been controversial with some states,4

The broad review of international human rights law

especially in the area of non-discrimination and rights of lesbian, gay, bisexual and transgender (LGBT) people.In the contemporary context, human rights are primarily conceived and understood aslegal rights. This dominant perspective is partly attributable to a continuing deﬁcit in a theoryof human rights beyond legal positivism, that is, the intellectual explanation and basis of ‘theinherent dignity of the human being’ and universal norms. While a basis beyond law isunresolved, there is a growing appreciation of the broader meaning of human rights withinthe international legal order. The protection of human rights under international law extendsbeyond international human rights law stricto sensu. Human rights concepts inform and shapeother areas of international law, for example, international humanitarian, criminal andrefugee law, which in turn contribute to the legal framework for the protection andpromotion of human rights. At a deeper level, the human rights project has also ‘humanised’international law impacting on its general content and probably its very foundations. Thishas occurred at both the doctrinal and structural levels (e.g. through obligations jus cogens anderga omnes) and in the nature of international law and its interpretation. It reﬂects a movetowards a ‘living’ and constitutional approach to international law, particularly as based onthe UN Charter as a constitutive instrument. The Charter may now be considered to reﬂecta positvisation of human rights within the international legal order.The human rights project faces subterranean challenges that are interwoven into the fabricof international law. These center on international and domestic politics, history, religion andbelief, culture and tradition, and have made it difﬁcult for some globally, especially indeveloping countries, to fully embrace the project. International human rights law does notoperate in a vacuum, but in the full context of national and international society. To date,important debates and challenges to universalism, including from cultural relativism (andsometimes even regionalism), have not been fully resolved. Democracy, in its most basicsense, is not a guarantee of respect for human rights: there remains the potential tyranny ofthe majority. For some, international human rights and religion are mutually exclusive andhermeneutically sealed. Human rights have been successfully manipulated and the subject ofrealpolitik by political elites and decision-makers. Regional human rights systems mayprovide a counterweight to some of these problems, as evident with the Inter-Americansystem and that region’s lack of overt rejectionism or relativism. However, such regionalsystems are absent in most areas of the world, and some of those that exist are substandardor underdeveloped.The existing gap between international human rights law and practice will only continueto undermine the progress of the project. Despite the establishment and impressive development of an international system to protect human rights, the state-centric fundamentals of theinternational system’s architecture are largely unchanged since the adoption of the UNCharter and the Universal Declaration. While legal doctrine has developed to impressivelevels of sophistication in some areas, the means of implementation and enforcement havegenerally lagged behind and maintained recommendatory in nature. The growing role of theUN Human Rights Council, building after a shaky start on the achievements of its predecessor the Commission on Human Rights, while not transformative has been important andprogressive despite the strong political headwinds. However, human rights are still not fullymainstreamed in the UN system. This is evident in the UN Security Council’s practice,which largely treats human rights as a second tier issue, useful for ‘mopping up’ after violence,even though today’s serious human rights violations often develop into tomorrow’s conﬂ icts.At the day-to-day level, the political will for full implementation of human rights is oftenlacking, conditional or circumspect.5

Scott Sheeran and Sir Nigel Rodley

There are also challenges that loom ahead for international human rights law toeffectively respond to fundamental global trends. While a number of such internationalissues have been identiﬁed, their full impact on human rights is yet to be realised andunderstood. These global trends include, for example, population growth and the need forenvironmental protection (e.g. the right to food, water and sanitation) and proliferation intechnology and new media (e.g. the right to privacy).In summary, as the human rights paradigm has moved – after unquantiﬁable sacriﬁce –from the political and legal fringes to the (still contested) national and internationalmainstream, there has been a tendency to look for new areas in which the concept can takehold. The tendency has been met with varying degrees of success. What emerges from thepresent volume, which explores many of the new territories, is the continuing relevance andcentrality of the core human rights paradigm that aims to protect the autonomy and dignityof the individual human being from the potentially oppressive power of the organisedcommunity.